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Five Final Rules in FAC 2005-61 Amend the FAR

 

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have issued Federal Acquisition Circular 2005-61, which contains five final rules amending the Federal Acquisition Regulation. In order of appearance, the rules are: Item I—United States-Korea Free Trade Agreement (FAR Case 2012-004); Item II—Delete Outdated FAR Reference to the DoD Industrial Preparedness Program (FAR Case 2012-026); Item III—NAICS and Size Standards (FAR Case 2012-021); and Item IV—Bid Protest and Appeal Authorities (FAR Case 2012-008). Item V makes technical amendments at FAR 7.403 and FAR 15.404-1. This FAC also contains a Small Entity Compliance Guide. A full listing of the regulations impacted by the rules, along with the effective date for each rule, appears in the FAC regulation table below. For the text of FAC 2005-61, see ¶70,002.151.

Korea Free Trade

The FAR Case 2012-004 rule finalizes, without change, an interim rule issued with FAC 2005-57 that amended the FAR to implement the United States-Korea Free Trade Agreement (see PL 112-41 and 19 USC 3805 note). The Republic of Korea is already party to the World Trade Organization Government Procurement Agreement, but this FTA implements a lower procurement threshold. The interim rule added the Republic of Korea to the definition of "Free Trade Agreement country" in multiple locations in the FAR. Eligible goods and services from Korea are now covered when valued at or above $100,000, rather than at or above the WTO GPA threshold of $202,000. The threshold for the Korea FTA for construction, $7,777,000, is the same as the threshold for the WTO GPA for construction. The Korea FTA $100,000 threshold for supplies and services is higher than the threshold for supplies and services for most of the FTAs ($77,494), but not as high as the Bahrain, Morocco, Oman, and Peru FTA threshold for supplies and services ($202,000). Therefore, new alternates clauses were required for the Buy American Act—Free Trade Agreements—Israeli Trade Act provision and clause ( FAR 52.225-3 and FAR 52.225-4) to cover acquisitions that are valued at $77,494 or more but less than $100,000. In that dollar range, all FTAs apply except for the Bahrain, Korea, Morocco, Oman, and Peru FTAs. The interim rule, which also made minor editorial changes, also impacted FAR 4.1202, FAR 25.003, FAR 25.400 through FAR 25.402, FAR 25.1101, FAR 52.204-8, FAR 52.212-3, FAR 52.212-5, FAR 52.225-5, FAR 52.225-11, and FAR 52.225-23.

Outdated DoD Program

The FAR Case 2012-026 rule amends the FAR to delete an outdated reference to the DoD Industrial Preparedness Program, which no longer exists. There is no impact to the government or small business because this program was discontinued in 1992. The rule amends FAR 6.302-3, Industrial mobilization; engineering, developmental, or research capability; or expert services, to remove the reference.

NAICS and Size Standards

The final rule associated with FAR Case 2012-021 amends the FAR to clarify that new North American Industry Classification System codes are not available for use in federal contracting until the Small Business Administration publishes corresponding industry size standards. NAICS codes are updated by the Office of Management and Budget through its Economic Classification Policy Committee every five years. The clarifying language at amended FAR 19.001, FAR 19.102, and FAR 19.303 is provided for informational purposes and only addresses internal government policies and procedures. Published size standards are available at http://www.sba.gov/content/table-small-business-size-standards and at SBA 121.201. The rule will not have a significant impact on the government, and does not impose additional requirements on small businesses.

Protests and Appeals

The FAR Case 2012-008 final rule amends FAR Part 33 to identify other federal court-related protest authorities and dispute-appeal authorities that are not covered by FAR Part 33. Specifically, this final rule adds a new regulation at FAR 33.001 to note that 28 USC 1491 authorizes the protest jurisdiction of the Court of Federal Claims, and that contracting officers should contact their designated legal advisors for additional information whenever they become aware of any litigation related to their contracts. This rule also amends the definitions regulation at FAR 33.101 to define "protest venue" as including the Government Accountability Office and the CFC, but not district courts. The rule amends FAR 33.102 to provide that COs must consider all protests and seek legal advice regardless of the protest venue. FAR 33.105 is added to state that procedures for CFC protests are set forth in the court's rules, which can be found at http://www.uscfc.uscourts.gov/rules-and-forms.


































































































































































































 






 

 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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